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Registration No.------------
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BAY NETWORKS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 04-2916246
--------------------------------- -----------------------------------
(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
4401 GREAT AMERICA PARKWAY
SANTA CLARA, CALIFORNIA 95054
------------------------------------------
(Address of principal executive offices) (Zip code)
BAY NETWORKS, INC.
1994 STOCK OPTION PLAN AND
1994 EMPLOYEE STOCK PURCHASE PLAN
------------------------------------------
(Full title of the plan)
DAVID J. RYNNE
EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
BAY NETWORKS, INC.
4401 GREAT AMERICA PARKWAY
SANTA CLARA, CALIFORNIA 95054
------------------------------------------
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (408) 988-2400
This registration statement shall hereafter become effective in accordance with
Rule 462 promulgated under the Securities Act of 1933, as amended.
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<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------------
Title of Proposed maximum Proposed maximum
securities to be Amount to be offering price aggregate Amount of
registered registered per share(1) offering price(1) registration fee
- -------------------- ------------------ ------------------ ------------------ ------------------
<S> <C> <C> <C> <C>
1994 Stock Option Plan
Common Stock, 15,500,000 $29.0938 $450,953,900.00
par value $0.01
1994 Employee Stock Purchase Plan
Common Stock, 1,500,000 $24.7297 $ 37,094,595.00
par value $0.01
TOTAL 17,000,000 $488,048,495.00 $143,974.31
</TABLE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Bay Networks, Inc. (the "Company") hereby incorporates by reference in
this registration statement the following documents:
(a) The Company's latest annual report on Form 10-K filed pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), containing audited financial statements for the Company's
latest fiscal year ended June 30, 1997.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the registrant document
referred to in (a) above.
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed under the Exchange Act,
including any amendment or report filed for the purpose of updating such
description.
- --------
1 Estimated pursuant to Rule 457 solely for purposes of calculating the
registration fee. The 1994 Employee Stock Purchase Plan establishes a
purchase price equal to 85% of the fair market value of the Company's
Common Stock and, therefore, the price for shares issuable under this
plan is based upon 85% of the average of the high and low prices of the
Common Stock on December 5, 1997 as reported on the New York Stock
Exchange. As to shares issuable under the 1994 Stock Option Plan, the
price is based upon the average of the high and low prices of the Common
Stock on December 5, 1997 as reported on the New York Stock Exchange.
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(d) The description of the Company's Preferred Stock Purchase Rights
contained in the Company's Registration Statement on Form 8-A, filed pursuant to
Section 12 of the Exchange Act, including any amendment or report filed for the
purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to this registration statement which indicates that all
securities offered hereby have been sold or which deregisters all securities
remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing of such
documents.
Item 4. Description of Securities
The class of securities to be offered is registered under Section 12 of
the Exchange Act.
Item 5. Interests of Named Experts and Counsel
Inapplicable.
Item 6. Indemnification of Directors and Officers
The Company's Restated Certificate of Incorporation provides that the
Company shall indemnify its directors and officers to the full extent permitted
by Delaware law, including in circumstances in which indemnification is
otherwise discretionary under Delaware law, may advance their expenses incurred
as a result of any proceeding against them as to which they could be indemnified
and may maintain directors' and officers' liability insurance, if available on
reasonable terms.
In addition, with the approval of its Board of Directors, the Company
has entered into separate indemnification agreements with its directors and
officers which require the Company to, among other things, indemnify them
against certain liabilities which may arise by reason of their status or
service.
These indemnification provisions may be sufficiently broad to permit
indemnification of the Company's officers and directors for liabilities
(including reimbursement of expenses incurred) arising under the Securities Act
of 1933, as amended (the "Securities Act").
Item 7. Exemption From Registration Claimed
Inapplicable.
Item 8. Exhibits
See Exhibit Index.
Item 9. Undertakings
(a) Rule 415 Offering
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
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(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(l)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section 13 or Section 15(d)
of the Exchange Act that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) Filing incorporating subsequent Exchange Act documents by reference
The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(h) Request for acceleration of effective date or filing of
registration statement on Form S-8
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
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SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, as amended,
the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Santa Clara, State of California, on December 9,
1997.
Bay Networks, Inc.
By: /s/ David J. Rynne
-----------------------------------
David J. Rynne
Executive Vice President and Chief Financial Officer
POWER OF ATTORNEY
The officers and directors of Bay Networks, Inc. whose signatures appear
below, hereby constitute and appoint David L. House and David J. Rynne, and each
of them, their true and lawful attorneys and agents, with full power of
substitution, each with power to act alone, to sign and execute on behalf of the
undersigned any amendment or amendments to this registration statement on Form
S-8, and each of the undersigned does hereby ratify and confirm all that each of
said attorney and agent, or their, her or his substitutes, shall do or cause to
be done by virtue hereof. Pursuant to the requirements of the Securities Act of
1933, as amended, this registration statement has been signed by the following
persons in the capacities indicated on December 9, 1997.
<TABLE>
<CAPTION>
Signature Title
- --------- ------
<S> <C>
/s/ David L. House Chairman of the Board, President and Chief Executive
- --------------------- Officer (Principal Executive Officer)
David L. House
/s/ David J. Rynne Executive Vice President and Chief Financial
- --------------------- Officer (Principal Financial Officer)
David J. Rynne
/s/ Rob G. Seim Vice President and Corporate Controller
- --------------------- (Principal Accounting Officer)
Rob G. Seim
/s/ Arthur Carr Director
- ---------------------
Arthur Carr
/s/ Shelby H. Carter, Jr. Director
- ---------------------
Shelby H. Carter, Jr.
</TABLE>
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<TABLE>
<S> <C>
/s/ Kathleen A. Cote Director
- ---------------------
Kathleen A. Cote
/s/ John S. Lewis Director
- ---------------------
John S. Lewis
/s/ Benjamin F. Robelen Director
- ---------------------
Benjamin F. Robelen
/s/ Ronald V. Schmidt Director
- ---------------------
Ronald V. Schmidt
/s/ Paul J. Severino Director
- ---------------------
Paul J. Severino
</TABLE>
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EXHIBIT INDEX
4.1 Restated Certificate of Incorporation of the Company is
incorporated by reference to Exhibit 4.1 to the Company's
Registration Statement on Form S-8 filed with the Securities and
Exchange Commission on May 26, 1995 (file No.
33-92736)
4.2 Amended and Restated Bylaws of the Company are incorporated by
reference to Exhibit 3.3 to the Company's registration statement
on Form S-4 filed with the Securities and Exchange Commission on
September 14, 1994
4.3 Rights Agreement is incorporated by reference to Exhibit 1 to the
Company's report on Form 8-K dated February 7, 1995 (File No.
0-19366)
5 Opinion regarding legality
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of Ernst & Young LLP, Independent Auditors
24 Power of Attorney (included in signature pages to this
registration statement)
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[GRAY CARY WARE FREIDENRICH LETTERHEAD]
ATTORNEYS AT LAW EXHIBIT 5
400 HAMILTON AVENUE
PALO ALTO, CA 94301-1825 OUR FILE NO.
TEL: (650) 328-6561 1020821-900301
FAX: (650) 327-3699 1020821-900601
http://www.gcwf.com
December 9, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
As legal counsel for Bay Networks, Inc., a Delaware corporation (the
"Company"), we are rendering this opinion in connection with the registration
under the Securities Act of 1933, as amended, of up to 17,000,000 shares of the
Common Stock, $0.01 par value, of the Company which may be issued pursuant to
the exercise of options and purchase rights granted under the Bay Networks, Inc.
1994 Stock Option Plan and 1994 Employee Stock Purchase Plan (the "Plans"). We
have examined all instruments, documents and records which we deemed relevant
and necessary for the basis of our opinion hereinafter expressed. In such
examination, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the conformity to
the originals of all documents submitted to us as copies.
We are admitted to practice only in the State of California and we
express no opinion concerning any law other than the law of the State of
California, the corporation laws of the State of Delaware and the federal law of
the United States. As to matters of Delaware corporation law, we have based our
opinion solely upon our examination of such laws and the rules and regulations
of the authorities administering such laws, all as reported in standard,
unofficial compilations. We have not obtained opinions of counsel licensed to
practice in jurisdictions other than the State of California. Based on such
examination, we are of the opinion that the 17,000,000 shares of Common Stock
which may be issued upon exercise of options and purchase rights granted under
the Plans are duly authorized shares of the Company's Common Stock, and, when
issued against payment of the purchase price therefor in accordance with the
provisions of the Plans, will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement referred to above and the use of our name wherever it
appears therein.
Respectfully submitted,
/s/ Gray Cary Ware & Freidenrich
GRAY CARY WARE & FREIDENRICH
A Professional Corporation
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Exhibit 23.2
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Bay Networks, Inc. 1994 Stock Option Plan and 1994
Employee Stock Purchase Plan of our reports dated July 18, 1997 with respect to
the consolidated financial statements and the financial statement schedule, of
Bay Networks, Inc. included in its Annual Report (Form 10-K) for the year ended
June 30, 1997, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Palo Alto, California
December 5, 1997
